SUBJECT:

Life Care Center of Chattanooga,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I sustain the determinations of the Centers for Medicare & Medicaid Services (CMS) to impose remedies against Petitioner, Life Care Center of Chattanooga, consisting of per instance civil money penalties of $6,500 and $3,500. ⁽¹⁾

I. Background

Petitioner is a skilled nursing facility in Chattanooga, Tennessee. It participates in the Medicare program. Its participation in Medicare is governed by sections 1819 and 1866 of the Social Security Act (Act) and by federal regulations at 42 C.F.R. Parts 483 and 488.

Petitioner was surveyed from April 27 - April 29, 2005 (April survey) by representatives of the Tennessee Department of Health in order to determine whether it was complying with Medicare participation requirements. The surveyors concluded that Petitioner was not complying substantially with participation requirements. Subsequently, CMS concurred with the surveyors' findings and it determined to impose remedies against Petitioner consisting of two per-instance civil money penalties of $6,500 and $3,500.

Petitioner requested a hearing in order to challenge CMS's determinations and the case was assigned to me for a hearing and a decision. I held a hearing in Chattanooga, Tennessee, on May 3, 2006. I heard the testimony of several witnesses and received the following exhibits into evidence:from CMS, CMS Ex. 1 - CMS Ex. 23; and, from Petitioner, P. Ex. 1 - P. Ex. 41.

II. Issues, findings of fact and conclusions of law

A. Issues

The issues in this case are whether:

1. Petitioner failed to comply substantially with Medicare participation requirements stated at 42 C.F.R. �� 483.25(h)(1) and 483.25(h)(2);

2. Per-instance civil money penalties of $6,500 and $3,500 are reasonable.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separate heading. I discuss each Finding in detail.

1. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(2).

The regulation at issue requires that a facility provide each of its residents with adequate supervision and assistance devices to prevent accidents. The regulation has been the subject of much litigation before the Departmental Appeals Board. It imposes on a facility the obligation to take all reasonable measures to protect its residents. It does not impose a strict liability standard on a facility. However, a facility must do everything within its power to protect its residents from events that are foreseeable.

CMS's allegations of noncompliance all relate to the care that Petitioner gave to a resident who is identified as Resident # 4. Certain facts about the resident and his stay at Petitioner's facility are not in dispute. Resident # 4 was an individual whose medical history included episodes of depression and suicide attempts. CMS Ex. 1, at 9. Prior to his admission the resident had attempted to kill himself by shooting himself in the head. Id. The resident had physical impairments that included hemiparesis. Id.

The resident remained depressed and, at times, suicidal during his stay at Petitioner's facility. CMS Ex. 3, at 59 - 63. While residing at Petitioner's facility Resident # 4 attempted to strangle himself by wrapping a call light cord around his neck. Id.; P. Ex. 24, at 1. Resident # 4 at times manifested highly agitated behavior. He repeatedly pulled his roommate's television off its stand. On several occasions the resident attempted to harm himself by pulling the television and/or a dresser onto himself. CMS Ex. 3, at 17, 40, 43, 47. On other occasions he threw himself out of his wheelchair onto the facility's floor. On April 11, 2005 the resident threw himself from his wheelchair and suffered a head laceration requiring sutures at a local emergency room. Id., at 45.

The resident's agitated and disruptive behavior continued through April 15, 2005. The resident's disruptive behavior around that time included crawling around on the floor, entering other residents' rooms, and attempted physical assaults on Petitioner's staff. CMS Ex. 16, at 11; P. Ex. 37, at 2.

Petitioner's staff assessed Resident # 4 in March 2005 for the possible use of a waist restraint. CMS Ex. 3, at 31. The staff concluded that use of a waist restraint was inappropriate due to the resident's attempts to choke himself. Id. The manufacturer of the type of waist restraint used in Petitioner's facility warned that the device's use was contraindicated in cases of aggressive, combative, agitated, or suicidal patients. Id., at 65. Furthermore, the manufacturer warned that:

Severe emotional, psychological, and physical problems may occur if a patient's movement is severely limited. The patient may become agitated if the device is uncomfortable or severely limits movement . . . .

Id.

However, and notwithstanding their previous assessment and the manufacturer's warning, Petitioner's staff decided on April 15, 2005 that the resident's behavior had become so agitated that it was necessary to restrain him with a waist restraint. On that date Petitioner's staff obtained an order from a physician to apply a waist restraint to the resident. P. Ex. 37, at 2. The resident wore the restraint - which consisted of a belt that ran across the resident's waist and hips and which effectively tied him to his wheelchair - throughout the night of April 15 and early morning of April 16, 2005.

The parties disagree sharply about the care that the resident received while he was restrained and the consequences of that care. Below, I discuss in detail the parties' representations of what occurred and I explain why I conclude that CMS's allegations are overwhelmingly supported by the credible evidence of record. I conclude that Petitioner's staff did not closely supervise Resident # 4 while he was restrained. I conclude also that as a consequence of lax supervision the resident struggled against his restraint and received wounds consisting of bruises, blisters, and open wounds in a wide arc across his waist that corresponded with the area where the restraint pressed against his body. These injuries were not detected by Petitioner's staff until about 8:00 a.m. on April 16, 2005. The resident's accidental injuries were foreseeable. Equally foreseeable was the likelihood that the resident could sustain far worse injuries than those that he actually sustained, or even die, as a consequence of lax supervision. Petitioner's failure to provide necessary supervision to Resident # 4 while he was restrained contravened the requirements of 42 C.F.R. � 483.25(h)(2).

Petitioner's staff were on notice that restraining Resident # 4 was an exercise that was fraught with risk. They knew that the manufacturer of the device had warned against using it with residents who were aggressive, combative, or suicidal. They knew also that Resident # 4 was aggressive, combative, and suicidal. In fact, they decided to restrain the resident precisely because of these behaviors. They knew also that they had assessed Resident # 4 as a poor candidate for being restrained. Having decided to go ahead and restrain the resident anyway Petitioner's staff was under an extremely heavy obligation to supervise him closely throughout the time that they restrained him.

Petitioner's policy for use of restraints requires that a restrained resident be observed at 30-minute intervals and that restraints be released at least every two hours for repositioning, toileting, and hydration of the resident. CMS Ex. 6, at 12. Petitioner was obligated to give the resident at least that much supervision, and more, given his history and propensities.

The credible evidence strongly supports my conclusion that Petitioner's staff failed to do so. I find it inconceivable that the resident would have sustained the injuries that he sustained had Petitioner's staff provided him with the close supervision that his condition, and the use of a restraint, mandated. The inference of non-supervision that I draw from the injuries that Resident # 4 sustained during the night of April 15 and the early morning of April 16, 2005 is heavily supported by the complete failure of Petitioner's staff to document that it supervised the resident during this period.

The resident's treatment record contains no nurse's notes or other contemporaneous narrative showing that the resident was checked to insure that the restraint was not harming him. In fact, there is no contemporaneous narrative in the resident's treatment record showing that Petitioner's staff were observing the resident at all while he was restrained. The lack of documentation is especially striking given that Petitioner's own policy governing its staff's use of restraints states that restrained individuals will be observed at 30-minute intervals and that restraints will be released at least every two hours for repositioning, toileting, and hydration. CMS Ex. 6, at 12.

I am unconvinced that Petitioner's staff would have provided the resident with close supervision and not documented it given the dangers posed by restraining him. The better explanation, and the one which I find to be persuasive, is that the absence of documentation of supervision in this case is due to a failure to supervise the resident.

The injuries sustained by Resident # 4 are strong evidence that the resident was not closely supervised by Petitioner's staff while he was restrained. None of Petitioner's staff who was on duty during the period when the resident was restrained admits to observing any injuries during that period. The resident's wounds were discovered at about 8:00 a.m. on the morning of April 16 when Jessica Walker, an LPN, was asked by members of Petitioner's housekeeping staff to take a look at Resident # 4. The resident was in his room, slumped over in his wheelchair, but restrained. P. Ex. 35, at 17. Ms. Walker observed the restraint to be "very tight." Id. Upon releasing the restraint she discovered that the resident's abdomen in the area where the restraint had been located, was red with some blisters and open wounds. The open wounds on the resident's skin were bleeding. Id.

The nature of the resident's injuries is evident from the fact that they were still observable on April 21, 2005. On that date they were observed, and photographed at her request, by Darla M. Ferrell, R.N., who saw Resident # 4 on that date at the Moccasin Bend Mental Health Institute. Tr. at 11 - 38. It is plain from the photographs that Ms. Ferrell had taken that the resident's injuries extended across a wide area of his abdomen roughly corresponding to the area that would be covered by a belt or a lap restraint. As Ms. Ferrell observed, and which observation is entirely consistent with what Ms. Walker saw five days previously, the injuries included broken skin, open areas, rubs, and abrasions. Tr. at 19; CMS Exs. 20 - 23.

I find it inconceivable that these injuries would have gone undetected throughout the period when the resident was restrained had Petitioner's staff been observing the resident closely. The cause of the injuries almost certainly was chafing produced by the restraint and by the resident's struggles against the restraint. The injuries were not subtle or hard to detect:as Ms. Walker observed on the morning of the 16^th, there were open, bleeding areas on the resident's abdomen. Petitioner's staff certainly would have seen the injuries or the struggles by Resident # 4 that likely produced them had they been observing the resident at 30 minute intervals and had they been releasing the restraint periodically and checking the resident's skin.

Petitioner argues that it is not reasonable to infer the seriousness of the resident's injuries from their appearance on the 21^st of April due to the passage of time between the 15^th and the 21^st. I am not making a medical judgment about the seriousness of the resident's injuries from the photographs of them that are in evidence. I infer, however, that the wounds that the resident manifested on April 21, and which were photographed on that date, were the injuries he sustained while he was restrained. Petitioner has offered no evidence to establish any other cause for the resident's injuries other than the restraint. One would logically assume that Petitioner's staff would document any new injuries that the resident received after the 16^th of April or any exacerbation of injuries received while he was restrained. I infer from the absence of documentation that the resident sustained no new injuries after he was restrained and that the injuries he received while he was restrained did not get worse with the passage of time.

Petitioner offered the testimony of Joyce Chibuye, R.N., and Crystal Speed, L.P.N., to support its contention that the resident's wounds worsened between the 16^th of April and the 21^st, when they were photographed at Moccasin Bend Mental Health Institute. Tr. at 86 - 92; 92 - 96. ⁽²⁾ These two witnesses averred that the injuries shown in the photographs depicted injuries that were significantly worse than the injuries to Resident # 4 that they observed on April 16^th. The inference that Petitioner would have me draw is that some intervening event, unrelated to the resident's restraint, caused the injuries that were photographed on April 21^st.

I find Ms. Chibuye's and Ms. Speed's testimony to be unpersuasive. As I discuss above, there is nothing in the resident's clinical record to support the hypothesis that the resident's wounds were the product of some event occurring after he was restrained. Ms. Chibuye's and Ms. Speed's testimony at the hearing is contradicted in important respects by other credible evidence, especially, Ms. Watson's observations on April 16. Moreover, the testimony of Ms. Chibuye and Ms. Speed is impeached by their prior statements. For example, at the hearing, Ms. Speed averred that she did not see any open areas on the resident's skin when she observed the resident on April 16, 2005. Tr. at 94. But, in a statement which Ms. Speed authored previously, she stated:

At 3:00 pm [on April 16, 2005] . . . [assistant director of nursing Joyce Chibuye] was asked to look at the area on . . . [Resident # 4]. Area was still red with blisters and open area.

P. Ex. 35, at 18.

Petitioner has not offered any other credible evidence to overcome the evidence of lack of supervision of Resident # 4. Petitioner asserts that supervision of the resident was recorded in his medication record. See P. Ex. 21, at 1. I do not find that this document is credible proof that the resident actually was supervised on the night of April 15 and in the early morning of April 16. It contains some notations in the left hand margin that describe the type of supervision that the resident ought to have received. Then, there is a column that seems to record work shifts for April 15 - 16 ("7- 3", "3 - 11", and "11 - 7"). Finally, the document records initials of someone ("J.B.") next to two of the three apparent shifts, as if to indicate that the supervision was provided during those shifts. But, Petitioner has not identified who "J.B." is (it offered testimony from another individual, Ms. Tatum Brooks, concerning the care that she allegedly provided to the resident, but Ms. Brooks did not aver that the entries on P. Ex. 21, or the initials on the exhibit, were hers). Nor does the exhibit describe what care the resident actually received, when he was observed, or when his restraint was checked and/or released. Moreover, it contains initials next to a work shift (3 p.m. - 11 p.m.) when the resident, apparently, was not restrained throughout the shift and when Ms. Brooks was not on duty. That suggests to me that the person who made the entries on P. Ex. 21 did so after the fact, as if to show in retrospect that supervision was provided to the resident, but without actually knowing what was or was not provided to him.

Petitioner offered the written testimony and statements of several members of its staff in order to demonstrate that the resident was, in fact, properly supervised while he was restrained. This evidence is unpersuasive. None of the staff testified that he or she observed the resident at 30-minute intervals, consistent with Petitioner's restraint policy and with the need to protect the resident against the hazards resulting from restraining him. P. Ex. 35; P. Ex. 37 - P. Ex. 41. Only one member of Petitioner's staff, Ms. Tatum Brooks, C.N.A., averred that she provided direct care to Resident # 4 while he was restrained. P. Ex. 38. The other witnesses testified only as to their brief observations, or in support of Petitioner's argument that restraining the resident was justified medically. For these reasons I do not consider the testimony of any of Petitioner's witnesses, except that of Ms. Brooks, to be germane to the issue of whether the resident was closely supervised while he was restrained.

Ms. Brooks testified that she worked on the 11 p.m. to 7 a.m. shift on the night of April 15 - morning of April 16. P. Ex. 38, at 1. According to Ms. Brooks, when she came to work at 7 p.m. on the 15^th she saw Resident # 4 seated at Petitioner's nursing station, restrained in his wheelchair. Ms. Brooks contended that she knew from her training and experience that a restrained resident had to be toileted and cleaned up every two hours. Id., at 2. According to Ms. Brooks, she provided such care to the resident throughout the night. Id. She asserted that each time she released the resident's restraint she checked the resident's skin and she saw no evidence of injury. Id. She averred that the resident looked "fine" at 7 a.m. on the morning of the 16^th of April, when she left her shift, and she observed no redness, blisters, or abrasions, on the resident's skin. Id.

Ms. Brooks' account is not corroborated by nursing notes or any contemporaneously made narrative in the resident's treatment record. Moreover, it is manifestly not credible. Ms. Brooks' written direct testimony along with several additional statements made by her, is self-serving and inconsistent. I find Ms. Brooks' assertion that she diligently checked the resident at two-hour intervals but never noticed the slightest evidence of the resident's abrasions and bleeding open wounds to be preposterous. I find also that there are glaring inconsistencies between Ms. Brooks' testimony and other statements made by her which establish her to be highly unreliable. For example, in her written direct testimony Ms. Brooks stated that "so far as I know, the Resident did not complain or struggle against the restraint all night . . . ." P. Ex. 38, at 2. However, in another statement, Ms. Brooks averred that "when I first saw him [Resident # 4] he was moving around in the wheelchair . . . ." P. Ex. 35, at 6. And, in yet another statement, Ms. Brooks declared that:

[Resident # 4] was sitting in his wheelchair in the dayroom. He was trying to wiggle out of the waist belt.

Id., at 8.

And, most significantly, Ms. Brooks does not aver that she supervised Resident # 4 closely or that she checked and released his restraint at 30-minute intervals. Thus, even if I were to accept Ms. Brooks' testimony as being completely true, it would not establish that Petitioner's staff gave Resident # 4 the requisite supervision while he wore his restraint. Checking and releasing the restraint at two-hour intervals - or, at most, three or four times during Ms. Brooks' eight hour shift - manifestly does not comply with Petitioner's own policy for supervising restrained residents nor does it satisfy any definition of close supervision.

I note that there are periods of time during which the resident wore a restraint but which were outside of the 11 p.m. - 7 a.m. shift worked by Ms. Brooks on the evening of April 15 and morning of April 16. Petitioner has offered no account of how the resident was cared for prior to 11 p.m. on that night or after 7 a.m. on the following morning, except for the statement by Ms. Walker, which I discuss above.

Petitioner makes three additional arguments concerning its staff's care of Resident # 4. First, Petitioner argues that if Resident #4 was injured as a consequence of restraining him the benefit of the restraints outweighed any harm that resulted from restraining him. Petitioner asserts that not restraining Resident # 4 would have posed a much greater risk of harm to the resident than any injuries sustained as a consequence of being restrained. It suggests that the injuries that the resident sustained were the unavoidable consequence of restraining him. Consequently, Petitioner argues that it should be excused from liability for the resident's injuries on the ground that the greater good was accomplished by restraining him.

I find this argument to be without merit. Assuming that restraining Resident # 4 was necessary, one cannot say that the benefit of restraining him outweighs the harm caused to him by the restraint in the face of overwhelming evidence that Petitioner's staff failed to properly supervise the resident while he was restrained. The "either or" logic used by Petitioner to justify what happened to Resident # 4 is false because one cannot say - given the failure to supervise - that the injuries he sustained were inevitable.

Second, Petitioner argues that it should not be held accountable for its care of Resident # 4 because the resident should not have been housed in Petitioner's facility at all. According to Petitioner "the proverbial elephant in the room" is that Resident # 4:

obviously was not an appropriate nursing facility resident, as he clearly posed a substantial ongoing risk of serious harm to the frail elderly persons around him, yet the State of Tennessee essentially had abandoned him to Petitioner's care, persistently refusing to admit or keep him at the local state psychiatric facility so long as he was off the street at Petitioner's facility.

Petitioner's post-hearing brief at 3.

This argument fails on two grounds. The Act and regulations do not excuse a facility from its care obligations on the ground that a resident or residents should not have been housed there to begin with. A facility takes a resident as he or she comes and is obligated to provide every resident with the identical quality of care. Here, Petitioner's duty to supervise the resident was in no respect lessened by the possibility that the resident was not a suitable candidate for long-term care.

Moreover, Petitioner's argument fails because it has failed to show that the care that it was obligated to provide Resident # 4 was beyond its capacity to provide. Resident # 4 was not injured despite Petitioner's staff having done all that they could do to supervise him, but because they failed to supervise him.

Finally, Petitioner emphasizes that Resident # 4's physician authorized the use of a restraint. Petitioner seems to argue from this undisputed fact that its restraining of Resident # 4 is somehow immunized from liability. Thus, Petitioner argues:

CMS does not appear to critique the professional decisions made by Petitioner's staff and the Resident's attending physician about how best to protect the Resident and others. In the circumstances of this case, this concession should be dispositive.

Petitioner's post-hearing brief at 31. But, notwithstanding this argument, the problem here is not whether use of a restraint was appropriate or authorized. What is at issue here is whether Petitioner properly supervised the use of an authorized restraint. The evidence is overwhelming that it did not do so. And, that failure by Petitioner is in no way made legitimate by the fact that use of the restraint was authorized.

2. Petitioner failed to comply substantially with the requirements of 42 C.F.R. � 483.25(h)(1).

The regulation at issue here is a companion to 42 C.F.R. � 483.25(h)(2). It requires that a facility's resident environment be as free of accident hazards as is possible. Whereas 42 C.F.R. � 483.25(h)(2) focuses on the care that a facility is obligated to give to each resident to prevent accidents 42 C.F.R. � 483.25(h)(1) focuses on the resident's environment and physical surroundings. As with 42 C.F.R. � 483.25(h)(2), 42 C.F.R. � 483.25(h)(1) does not apply a strict liability standard to a facility. Rather, the regulation imposes on a facility the obligation to eliminate all accident hazards that are known or that are reasonably foreseeable.

CMS alleges that Petitioner failed to do what was necessary to eliminate accident hazards from the environment of three of its residents, Residents #s 4, 5, and 7. CMS asserts that, in the case of Resident # 4, Petitioner's staff knew that the resident was a suicide risk and that he had a history of engaging in reckless, including assaultive, behavior. Yet, Petitioner's staff failed to remove potentially hazardous items from the resident's room - including a call light cord and coat hangers - despite knowing that the resident had used these items in the past in attempts to injure himself and others, and also despite a physician's order that the items be removed. As for Residents #s 5 and 7, CMS argues that Petitioner's staff applied lap belts - devices designed to protect residents from sliding out of wheelchairs - improperly, thereby subjecting these residents to risks that included compression of the residents' chests and necks and asphyxiation. CMS argues additionally that the failures by Petitioner to apply lap belts appropriately to Residents #s 5 and 7 constituted a broad and systemic failure to apply its own policy governing appropriate use of restraints and supervision of restrained residents.

The evidence that CMS offered in support of its arguments is credible and persuasive. It strongly supports a finding that Petitioner failed properly to eliminate known or foreseeable accident hazards from its facility. Petitioner did not rebut this evidence. Much of what CMS offered was simply not challenged by Petitioner.

Resident # 4 had an extensive record of suicide attempts and assaultive behavior. In November 2004 the resident attempted to commit suicide by wrapping a call-light cord around his neck and strangling himself. CMS Ex. 1, at 9. On at least two occasions the resident attempted to stab members of Petitioner's staff. On April 19, 2005, Resident # 4 attempted to stab a staff member with a straightened wire coat hanger. CMS Ex. 3, at 47; P. Ex. 24, at 42.

Events such as the foregoing prompted Resident # 4's physician to issue a written order in November 2004 directing that Petitioner remove from the resident's room sharp objects, cords, or other objects that the resident might use for future suicide attempts. CMS Ex. 3, at 11. The evidence shows that the resident's self-destructive and assaultive behavior did not abate after November 2004. In some respects it escalated, culminating in Petitioner's decision on April 15, 2005 to restrain the resident. Yet, despite the resident's history and the physician's orders, during the April survey a surveyor discovered a call-light cord still in Resident # 4's room. And, she discovered approximately 20 wire coat hangers still in the resident's closet. CMS Ex. 16, at 9 - 10.

Petitioner offered very little to respond to this evidence. It did not deny that the resident was suicidal or assaultive, nor did it dispute that the resident had attempted to commit suicide with a call-light cord or had assaulted members of Petitioner's staff with a straightened wire coat hanger. It did not deny that the resident's physician had ordered that the call-light cord and sharp objects be removed from the resident's room. Nor did Petitioner deny that a call-light cord and wire coat hangers were still in the room as of the April survey.

Petitioner asserts that the resident's mental state improved after the November suicide attempt and that, at some unspecified point subsequent to the attempt, the resident was allowed to keep materials such as metal coat hangers in his room. Petitioner's post-hearing brief at 10. I find no support for Petitioner's contention in the record of this case. There is nothing to suggest that the resident's physician ever rescinded his November 2004 order. The exhibit Petitioner cites - P. Ex. 29 - as support for its contention does not contain a physician's order authorizing restoration of the call-light cord or wire coat hangers in the resident's room. And, even if, for an unspecified but finite time period after November 2004, the resident temporarily improved so that he did not pose a threat to himself or to others, the risk that the resident would engage in destructive or self-destructive behavior certainly reemerged by April 2005. It was in April that the resident attempted to injure or kill himself by throwing himself out of his wheelchair. In that same month the resident assaulted a staff member with a straightened wire coat hanger. And, in April 2005, Petitioner's staff found the resident to be so beyond their ability to control that they restrained him.

As for Residents #s 5 and 7, Petitioner does not even address the evidence cited by CMS. That evidence shows that both of these residents were placed at risk by inappropriately applied lap belts. In the case of Resident # 5, during the April survey a surveyor observed that the resident's belt was improperly attached to the resident's wheelchair causing the belt to be in an improperly high position around the resident's waist. CMS Ex. 16, at 19. In the case of Resident # 7, a surveyor observed that the resident's belt also was misapplied in a way that created a dangerous open gap between the belt and the resident's thigh. CMS Ex. 17, at 3. In the case of each resident, the misapplication of the belt created a risk that the belt could slide upward and compress the resident's chest, thereby asphyxiating the resident. Id.

3. Per instance civil money penalties of $6,500 and $3,500 are reasonable.

The remedies that CMS determined to impose for the two deficiencies that I have addressed in this decision are two per instance civil money penalties:$6,500 to remedy Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25(h)(2); and $3,500 to remedy Petitioner's noncompliance with the requirements of 42 C.F.R. � 483.25(h)(1). The authority to impose per instance civil money penalties is stated at 42 C.F.R. � 488.408. The regulation makes it evident that the presence of immediate jeopardy is not a necessary prerequisite for imposing a per instance civil money penalty of as much as $10,000. ⁽³⁾ That distinguishes the per instance penalty from a daily civil money penalty. The presence of immediate jeopardy is a prerequisite for imposing a daily penalty in an amount of $3,050 per day or more, whereas it is not a prerequisite for imposing a per instance penalty of as much as $10,000. 42 C.F.R. � 488.408(d)(1); see 42 C.F.R. � 488.408(e)(2). ⁽⁴⁾

The criteria for determining the amount of per instance civil money penalties are stated at 42 C.F.R. �� 488.438(f) and 488.404 (incorporated by reference into 42 C.F.R. � 488.438(f)(3)). These criteria include:the seriousness of a deficiency or deficiencies; the relationship of one deficiency to another; a facility's compliance history; its culpability; and its financial capacity to pay a penalty amount.

CMS determined both of the deficiencies that are at issue here to be immediate jeopardy level deficiencies and the parties argued at length whether the deficiencies actually were at the immediate jeopardy level. However, it is not necessary that I address the issue of whether Petitioner's deficiencies were at the immediate jeopardy level because a finding of immediate jeopardy is not a necessary prerequisite to imposing a per instance civil money penalty of as much as $10,000. For that reason I make no finding in this decision as to whether either of the two deficiencies that I have discussed above were at the immediate jeopardy level.

By contrast, I address closely the questions of what actual and potential harm resulted from Petitioner's noncompliance. I conclude that the two deficiencies in this case were very serious. In both instances residents' lives and safety were put at great risk by Petitioner's noncompliance. And, it is fair to say - without concluding that the deficiencies met the technical definition of immediate jeopardy - that Petitioner's noncompliance not only caused injury to one resident (Resident # 4) but put this and other residents at a high likelihood of sustaining serious injury, harm, or death.

a. A per instance penalty of $6,500 is reasonable to remedy Petitioner's noncompliance with 42 C.F.R. � 483.25(h)(2).

The actual injury sustained by Resident # 4 undoubtedly was painful, but not life threatening. The resident suffered from bruises and some open bleeding wounds on the surface of his abdomen. The evidence does not show that the resident required special medical care or intervention to treat his injuries. Nor is there evidence that the resident suffered from complications, such as an infection, as a consequence of being injured.

But, if the injuries the resident actually suffered were not extreme, the potential for serious harm or worse to this resident while he was restrained without adequate supervision was extreme. Resident # 4 had a long and well documented history of suicide attempts and self-destructive behavior. While at Petitioner's facility the resident attempted suicide on at least one occasion. On other occasions the resident attempted to injure himself - if not commit suicide - by throwing himself out of his wheelchair and by pulling heavy objects, such as dressers and television sets, down onto him. This resident was at high risk to attempt a self-destructive act at any moment.

As I discuss above, the fact that the resident was relatively seriously injured while restrained is compelling evidence that no one on Petitioner's staff provided the resident with the requisite close supervision. Restraining the resident and not closely supervising him was an invitation to disaster. It is reasonable to infer that, while not supervised, the resident could have tipped over his wheelchair while bound to it. And, it is also reasonable to infer that the consequence of toppling a wheelchair while bound to it could have led to a very serious injury or death. It was fortuitous that the resident did not tip over his wheelchair while restrained given the resident's history and given further his out-of-control behavior that led to his being restrained.

I find that a per instance civil money penalty of $6,500 is eminently reasonable in light of the danger that was posed to Resident # 4 by not adequately supervising the resident while he was restrained and by Petitioner's staff's failure to recognize those risks. The facts of this case lead me to conclude that Petitioner's failure to supervise Resident # 4 while he was restrained amounted to reckless disregard of the risks to the resident. In my judgment a penalty of $6,500 is entirely commensurate with the dangers posed to the resident by inadequate supervision.

I note that neither CMS nor Petitioner argued that Petitioner's compliance history, the relationship between deficiencies, or its financial ability to pay a penalty are factors that should be considered in deciding whether the $6,500 penalty is reasonable. Therefore, I do not address these factors here.

b. A per instance penalty of $3,500 is reasonable to remedy Petitioner's noncompliance with 42 C.F.R. � 483.25(h)(1).

A per instance penalty of $3,500 is reasonable to remedy Petitoner's failure to protect its residents against accident hazards. There is no evidence that Petitioner's failure to protect its residents caused them to sustain injuries. But, the evidence is very clear that Petitioner's staff's disregard of obvious hazards put these residents at a very high risk of injury or death. The penalty is, in this case, commensurate with the dangers posed to the residents by Petitioner's noncompliance and with Petitioner's staff's indifference to the need to protect residents against obvious hazards. ⁽⁵⁾

In the case of Resident # 4 Petitioner's staff knew that the resident had a history of attempting to strangle himself with a call light cord and they knew also that the resident had made weapons out of wire coat hangers. Yet, inexplicably, the staff left these objects in the resident's room even after the resident's physician ordered that they be removed. That some catastrophic consequence did not result from this failure to provide care is simply a matter of luck.

As for Residents #s 5 and 7, the failure of Petitioner's staff to fasten properly the residents' lap restraints put these residents at high risk for injuries or death resulting from compression or strangulation. I agree with CMS that the same failures of care in the case of two similarly situated residents establishes a pattern of incompetent care by Petitioner's staff.

Steven T. Kessel

Administrative Law Judge

1. As a consequence of the amount of the civil money penalties Petitioner also loses its authority to conduct nurse aide training.

2. There is a reporting error in the transcript which incorrectly labels these two witnesses' direct testimony as "cross-examination" and their cross-examination as "redirect" testimony.

3. An immediate jeopardy level deficiency exists where a deficiency causes or is likely to cause serious injury, harm, or death to a resident. 42 C.F.R. � 488.301.

4. The Act permits civil money penalties in daily amounts of as much as $10,000 without consideration of whether there is immediate jeopardy. Act, section 1819(h)(2)(B)(ii). Indeed, the Act does not define "immediate jeopardy" as a category of deficiency. The decision to impose daily penalties of $3,050 or more only in cases of immediate jeopardy is an act of discretion by the Secretary which is not mandated by statute. The decision to impose per instance penalties of as much as $10,000, even where immediate jeopardy does not exist, is entirely consistent with the statutory limit on civil money penalties.

5. As is the case with the $6,500 penalty, neither Petitioner nor CMS addressed all of the factors that might be relevant to deciding a penalty amount.